Call Off the Fracking Dogs: Dakota Access Pipeline

I’ve been studying fracking with an open mind. Unfortunately, the more I read, the more disturbed I’m becoming. The true story here seems one of corporate irresponsibility, poor governmental oversight, inadequate regulation, and short-sighted deals made by often desperate individual landowners, who deal with greedy corporate behemoths. The land and our nation’s water accordingly suffers from our mistakes, and this weighs on my heart.

I began to read about fracking a few days before the Dakota Access pipeline exploded into the public’s attention. I was in the library with my children, and after helping Ben pick out a few books, I drifted into the non-fiction section. And I saw two books on fracking. One was pro; the other, con. I like to get both sides of an issue. It probably comes from my days practicing law. One of the enduring lessons of law school is that there is always (or almost always) a majority decision and a dissenting view, and sometimes the dissenting view eventually becomes the new standard after time passes and the law shifts.

The book in favor of fracking, The Fracking Truth by Chris Faulkner, was written by a man who claims that “no oil company owns fracking_faulknerhim or pays him to flog a point of view.” Faulkner, however, does hold an incredibly large stake in the successful outcome of the legal challenges posed to fracking, for he owns Breitling Energy Corporation (formerly Brietling Oil & Gas Company). I didn’t dismiss Faulkner’s point of view merely because he holds a personal stake in fracking; I did find, however, that Faulkner’s writing and analysis to be subpar.

Faulkner rightly points out the advantages of fracking: it takes advantage of new drilling techniques that allow us to access natural gas from American land cheaply. And if we can secure and use American natural gas, we can “reduce our oil import dependency, notably from volatile regions or nations antagonistic to America’s interests.” See Preface vii. Additionally, relying on natural gas could reduce our reliance on coal, which is a major source of pollution and greenhouse gases.

The problem with Faulkner is that he writes like a cheerleader, and sells fracking with bright shiny graphs and photographs, but fails to analyze the risks of hydraulic, horizontal drilling. He also does not discuss the risks to the water supply posed by fracking. He merely shows the rosiest picture possible, replete with pretty pie charts showing the wealth and cheap energy that fracking could provide.

The other book I read, Under the Surface: Fracking, Fortunes, and the Fate of the Marcellus Shale by Tom Wilber is a completely different affair. Wilber is a reporter who worked on the fracking story in Pennsylvania and New York for several years. And it is much more difficult to tell if Wilber is pro or con fracking. He tells the story of fracking by patiently relating the stories of landowners, community activists (usually reluctant ones who are also landowners affected by fracking), lawyers, regulators, landmen who negotiate for the gas companies, the academics who advise the gas companies, and politicians who in most cases side with the gas companies.

Wilber takes us into the lives of people who live in Dimock, Pennsylvania, a small town in Susquehanna County, Pennsylvania. We meet land-rich but often desperate families, who negotiate with landsmen representing Cabot Oil and Gas Company over coffee tables and inside meager home sites that sit atop one of the largest shale formations (the Marcellus Shale formation) inside the United States. We meet families facing foreclosures, mounting health care bills, and the promise of a better life—if only they sign on the dotted line. And many families do sign. They sign leases with Cabot and almost every family sees the lease agreement as the sign of better days to come.

Little do they know that each well requires 900 to 1300 truck deliveries, or that the fracking process itself requires the use of about six swimming pool’s worth of water mixed with chemicals for each well. These chemicals are often poisonous . . . and yet the companies are not required to disclose the chemicals they are using. Because the companies won’t list the chemicals, water treatment plants began to decline to take those six swimming pools’ worth of water. And over time, the chemical-laden water was often left to sit in rotting storage tanks on the land for months at a stretch. wilber_fracking

How is this even possible? And what happens when a storage tank leaks, or a poorly-lined well leaches into the water aquifer beneath or above the shale?

Too often, the first answer is—nothing.

Little did the landowners know that wells are exempted from the EPA’s Safe Water Drinking Act’s provisions that establish minimum regulations for state Underground Injection Control Programs (or “fracking”). In fact, well operators need not comply with any federal regulations regarding safe water drinking under what has been deemed the “Halliburton Exemption,” which exists to this day. In other words, regulation of fracking is largely left up to the states, and most state regulators, including Pennsylvania, are undermanned.

What does this mean for the people of Dimock? It means that once Cabot started drilling on the residents’ land and those wells or storage tanks leaked, all of a sudden, a family went from drinking perfectly pure and safe water to having to wash laundry in bottled water. Can you imagine taking a load of laundry out of your dryer and finding it ruined? Can you imagine flipping on your tap water, only to pour brown sludge into a glass?

I can hardly comprehend it myself.

And here’s where the story becomes plain frustrating. Several water wells, all within a short distance of a gas well, go bad. Cabot says it’s not their fault, but if a resident hollers enough, they decide to make some water deliveries. Maybe they ship over some bottled water, or in some cases, they deliver water buffaloes to the beleaguered landowners.

Water buffaloes freeze in the winter (requiring exterior heating, which costs a lot of money) and they garner lots of bacteria in the summer—becoming undrinkable and worse. Still, the drilling continues. And the landowners drink cruddy water, or they have to use bottled water for all their household needs, including laundry.

As time passes, residents spot leaks from the water storage tanks, and Cabot promises to study it but does not rectify it. More residents find that their formerly pristine water is going bad, or the fish in their ponds are sick or dying. Cabot disclaims responsibility, and the regulators do nothing.

Finally, Norma’s well explodes (by this point in the book, Norma feels like family), and great damage is done to the property. In fact, four nearby homes are completely out of water after the New Years’ Day explosion. The residents thought at this point that the drilling would stop or that immediate and significant improvements would be made to ensure safer drilling operations. Explosive levels of methane are found in at least a dozen wells.

But instead of ordering a stop to the drilling or requiring strict enforcement actions, the state regulators cautioned that any enforcement action had to be weighed against the industry’s response, and that much of the enforcement was determined through negotiation. After all, if you come down too hard on the gas companies, said the regulator, the industry may stop voluntarily reporting safety violations. And apparently safety inspections rely almost entirely on industry reports.

I saw this, by the way, when I worked as a lawyer in the energy and financial markets. Anytime regulators wanted to fix something that had gone wrong in the field, they contacted the company and asked for information. The company would then be given a chance to voluntarily provide information and enter into an agreement to fix whatever they had done wrong—and it’s safe to say that such negotiations can drag on for years. The same is true of course for the townspeople of Dimock. While they waited for the industry to report its manifold safety violations, the damage to the land and to the water supply from hydraulic drilling continued.

The Switzers’, for example, were out of water, and now they were relying on Cabot to make deliveries of substandard water via plastic water tanks.

“These are used for cattle, and we are not cattle.” –Victoria Switzer

In order for the residents of Dimock to receive help, they had to become, as they called it, accidental activists. Unfortunately, the existing federal and state laws provided scant protections to individual landowners who had the misfortune to sign lease agreements with Cabot. After all, Halliburton has ensured that producers of wells and those who inject water and other chemicals into the ground to extract oil and gas are EXEMPT from the Safe Drinking Water Act.

So where do we stand now, in North Dakota? Why is the largest Native American protest in recent history taking place on a reservation?

It’s because of the The Bakken pipeline.

Photo courtesy of
Photo courtesy of

What is the Bakken pipeline? It is a 1,134-mile long underground oil pipeline project that is using hydraulic fracking to extract crude oil and then ship it from the Bakken oil fields in Northwest North Dakota, through South Dakota, Iowa, to its endpoint in Patoka, Illinois. The Bakken pipeline is 48 % complete, and is expected to come online in January 2017.

Only two entities are stopping the completion of the pipeline at this point: a small group in Iowa, who won a reprieve from state regulators, and a mammouth band of Native American tribes, who are peacefully protesting on a North Dakota reservation and who are also pursuing legal action in D.C. Led by the Standing Rock Sioux tribe, the opposition won a temporary work stoppage this week. According to the Associated Press,

“U.S. District Judge James Boasberg said Tuesday that work will temporarily stop between State Highway 1806 and 20 miles east of Lake Oahe, but that work will continue west of the highway because he believes the U.S. Army Corps of Engineers lacks jurisdiction on private land.”

The tribe sought the work stoppage after a weekend confrontation between protestors and construction workers over the alleged bulldozing of sacred sites near Lake Oahe. Meanwhile, work continues on the reservation, and protestors have continued to amass peacefully on the reservation. There have been a few reports of individuals tying themselves to heavy machinery, but no arrests have been made, and there have been no reports of violence by protestors.

The problem is that the company, Dakota Access Pipeline, has not exhibited the same restraint. In the following video clip, security guards hired by the oil company release attack dogs on protestors.

According to bystanders, more than six Native Americans (including one child) were bitten by the dogs, and more than thirty protestors were sprayed (presumably by company personnel) with pepper spray.

Think about this for a minute. Who do you trust to take care of our land and our water supply—Native Americans, who are raised

Standing Rock Indian Reservation By User:Nikater [Public domain or Public domain], via Wikimedia Commons
to love the land and believe it has a spirit, or energy companies who would send attack dogs to quell peaceful protestors? These same energy companies, mind you, are out to protect a 3.8 billion dollar investment, and they have a fiduciary duty to to obtain the greatest return on their investments. They do not have a duty to protect our water or our land, and while these energy companies are treated as persons under the laws,  act like anything but human.

These are the people who are bringing us our crude oil. If corporations wish to be treated as persons, they need to start acting like them. They need to behave like good citizens. They need to treat the land better. They need to take more steps to safeguard our water supply.

But most of all, before they take any better safety measures to improve how they take gas and oil out of the land, they need to call off the dogs.


Dear Dakota Access pipeline executives: CALL OFF THE DOGS.

Yours truly.

An actual U.S. citizen.